1 While defendants argue that the document s in

question a

re actu ally an "aud it," def endants nevertheless persistently refe r to the documents as a "survey." We adopt th is termino logy

and note No. 2--09--0100 Filed: 1-22-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ ROCKFORD POLI CE BENEVOLENT AN D ) Appeal from the Circuit Court PROTECTIVE ASSOCIATI ON, UNIT #6 ) of Wi nn eb ag o C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 08--CH--349 ) LARRY MORRISSEY, May or of the City of ) Rockford, CHET EPPERSON, Chief of Police ) for the Ci ty o f Rockford Police

Department, ) and THE CI

TY OF ROC KFORD PO LI CE ) DEPARTMENT, ) Honorab le ) Ronald L. Pirrello, Defend ants-App ellants. ) Judge , Pres idin g.

__________________________________________________________________ __________

____ _ JUSTICE O'MAL LEY d elivere d the opini on of the c ourt: De fe nd an ts , La rr y Mo rr is se y, the mayor of Rockf ord (mayor) , ChetEpperson, the chief of the Rockford

police department (chief), and the City of Rockford Police Department (department), appeal the order

of the circuit court of Winnebago County granting the cross-motion for summary judgment of plaintiff, the Rockford Police Benevolent and Protective Association, Unit #6, and denying defendants' cross-motion for summary judgme

nt on plaintiff's Freedom of Information Act (FOIA)(5 IL

CS 140/1 et seq. (West 2006)) request that seeks to compel defendants to disclose the resul ts of a three-part survey 1 conducted by Rockf ord College at the behest of the departmen t
.No. 2--09--0100

that our use of the term "survey " is not meant to prejudge defendants' contention. -2- Defend ants argue that the survey should not be disclosed, under the theor ies that it is exempt as an audit (see 5 I LCS 140/7(1)(n) (West 2006)), as a personnel ma tter (se e 5 I LCS 140

/7(1)(b )(ii) (We st 2006)), and under the self-critical analy sis privilege. Defendants also arg ue that plaintiff is not entitled to an award of attorney

fees or, alternatively, if pla intiff is entitled to attorney fee s, then the trial cou rt's fe e awar

d was exce ssive. We a

ffirm. The following factual summary is taken from the record on appeal. Plaintiff i s the unio n repres enting t

he police office rs employ ed by the depa rtment. In2007, the

department aske d a Rockf ord Colleg e class to

conduct an anony

mous three-part

su rv ey. The s urvey

would be given to sworn police officer employ ees of the department, civilian employees

of the department, and residents living in the "Weed & Seed" area of Roc k ford. Defend ants represent that

the purpose of the survey

was to assess the department's performa nce. The department's employ

ees were also asked to rate their job satisfac tion. OnOctober 31, 2007, plaintiff submitted FOIA r equests seeking disclosure of (1) the threepart survey, (2)

records about certain financial expenditures and invoices relating to the department for the period beginning April 10, 2006, through October 31, 2007, (3) public recor ds that the chief had access to or cont rol over in rega rd to mone

y a ccounts, funds, credit cards, and cash supplied by the City of Rockford or

the depa rtment, and (4 ) depar tment record s pert ainin g to all sick- time usage for the periodbeginning January 1, 2004, and ending October 31, 2007. On November 27, 2007, de fendant s denied the first three requests and ag reed to the fourth request, subject to agre ed -upo n limitations

. As pertinent here, the FOI A requ est for the s urvey was deni ed based

on the aud

it exception (5 IL

CS 150/7(1)(n) (West 2006)), the self-critical analy sis privilege as developed underNo. 2--09--0100

-3-

the federa

l common la

w, and the

deliber ative pr ocess/pr eliminar y dr aft exce ption (5 I

LCS 140/7(1)(f) (West 2006)). Plaintiff filed this action to contest d efenda nts' den ial of its f irst thre e FOI

A reque sts. During pretrial negotiations, the parties were able to come to a n agreement concerning

the second

and third FOIA requests, for disclosure of the records of f inancial expenditures and invoices and the pu

blic records that the chief

had acces s to or control over. The parties filed cross-motions for summary judgment regarding the disclosure of the survey. On Septe

mber 29, 2008, the tri al co urt heard argument onthe cross-motions for summary judg ment. The court directed the parties to submit the ir positions r

egard ing atto rney fees. OnOctober 9, 2008, the trial court entered judgment on the FOI A request and

attorne y f ees. The trial court held that the survey was not exempt from disclosure either as an audit or pursuant to the self-critical analy sis privilege, or any other privilege. Thetrial court expressly determined tha t the "fundamental purpose of the request for the 3-part Survey was not to further commercial interest s" and that plaintiff was entit led to re asonable

attorne y f ees in an amount tobe determined. Defend ants filed a mo tion to rec onsider. The tria l court deni ed defe

ndants'motion to reconsider, accept ed pla inti ff's supplemental petition for attorney fees, determined that plaintiff was due an award of attorney fees of ove r $1 4,000, and ordered defendants to produce the thr ee-part survey within 48 hours. Defendants filed a motion to stay enforcement of theorder, which the trial court g ranted p ending

the outcome of this a

ppeal. D efenda

nts timely appeal. Defend ants appeal from the trial court's gr ant of summary judg

ment in fa vor o f pla intif f. We review de novo the trial court's grant of a motion for summary judg ment. Blair v. Nevada L anding Par tn ers hi p R BG, LP , 369 Ill. App. 3d 318, 322 (2006).No. 2--09--0100

-4-

Defend ants' first contention on appeal is that the survey constitutes an audit for purposes of section7(1)(n)

of the FO IA ( 5 ILCS 140/7(1)(n) (West 2006)) and that as an audit, it is exempt from disclosur e. Section 7(1)(n

) of the F OIA

exempts: "Communications between a public body and an attorney or

auditor representing the public body

that would

not be subj ect to disc overy in litig at ion, and materials prepared or compiled by or for a p

ublic body

in anticip atio n of a cr

imin al, civil or administrative proceeding

uponthe request of an attorney advising the public body, a nd materials prepared

or compiled with respect to internal audits of pub lic bodi es." 5 I LCS 140 /7(1)(n ) (West 2006). Under the FOIA, public re cords are presumed to be open and ac cessible. Illinois Education Ass'n v. Ill inois State Board of Education , 204 I ll. 2d 456, 4 62 (2003) . Ind eed, the FOI A clear ly s ets forth the legisla tive inten t behind its

enactme nt: "Pursuant to the fu ndamental philosophy of the Amer ican constitutional form of gover nment, it is decla

red to be the pub lic policy of the Sta

te of I llinois tha

t all persons are entitled to full and compl ete information regarding the af fairs of government and the officia l acts and polic ies of emp loy ees cons istent wit h the ter ms o f this Act . Such ac cess is necessary to enable the peopl e to fulf

ill their duties of discussing public issues fully and fr ee ly, making informed

political judgmen ts and monitoring g overnme nt to ensur

e that it is being c onducted

in the publ ic intere st. This Act is not intended to be used to *** disruptthe duly-underta ken work of any public body independent

of the fulfillment of any of the fore-mentioned rights of the peopl e to access to information.No. 2--09--0100

-5- *** Theserest

rain ts on i nfor mation acc ess sh

ould b e see

n as li mited exc e ptions to the general rule that the people have a right to know the d

ecisions , policie s, proce dures, r ules, standar ds, and other aspects of government ac tivity that affect the c ondu ct of gov ernment and the lives of any or a

ll of the people. The pr ovisions of this Act shall be construed t o this end." 5 ILCS 140/1 (West 2006). When a public body rec eives a proper request for information, it must comp ly w ith the re quest unle ss
one of the section 7 (5 IL CS 140/7 (West 2006)) exemptions applies. Illinois Education Ass'n , 204 Ill. 2d at 463. If the public body

seeks to use one

of the se ction 7 exe

mptions as a

ground for ref using to disclose the requ ested inf ormation, it must

give written notice specify ing the particular exemption it is claimin

g to authorize the d

enial. Illinois Education

Ass'n , 204 Ill. 2d at 464. I f the party se eking the information challenges in thecircuit court the public body's de nial, the public body shoulders the burden of provingthat

the records in question fall within the claimed exemption. Illinois Education Ass'n , 204 I ll. 2d at 464. To meet its burden and to assist the court in making its determination, the public body

must provide a detailed

justification for its claim of exemption, addressing the requested records specifically a

nd in a manner allowing for adequate a dversarial testing. Illinois Education Ass'n , 204 Ill. 2d at 464. With these principles in mind, we turn t o defendants' particular contenti ons. Defend ants note that "audit" is not defined within the FOIA. Defend ants also correctly n

ote that the f undament al rule in interpre ting a st atute isto ascertain and

give effect to the intent of the legislature. People ex r

el. Birk ett v. Konets ki , 233 Ill. 2d 185, 193 (2009). The best evidence ofNo. 2--09--0100

-6-

legislative intent is the language used in the statute, giving that language its plain and ordinary meani ng. Konetski , 233 Ill. 2d at 193. Defendants note that " audit" is defined as a methodical examination and review. Defendants assert that the survey a

t issue here was actually

an "audit," as it was a m ethodical ex amination and review of the department's pe rformance as viewed by department

personnel and the local public. Defendants conc lude that t his assessment of the depart ment's perfor

mance qu

alifies a s an audit

subject to

the sect ion 7(1)( n) exemption. We disagree. Inthe first instance, defendants provide no detailed rationale (see Illino is Ed ucati on Ass 'n , 204 Ill. 2d at 464) to explain their bare conclusion that the survey (again, we note th at this is defenda nts' own terminology)

qualified as an "audit" under s ection 7( 1)(n) of

the FOI A. Bec ause of this failure

alone, w e could pr

operly hold that defendants did not meet their burden of providing

a " detailed justifica tion," " address ing the r

equeste d documen

ts specif ic a lly." (Emphasis in original.) Illino is Ed ucati on Ass 'n , 204 Ill. 2d at 464. Inthe second place, defendants offer no explanation of how the survey satisfies the de finition of an "audit." The noun "audit" is defined as "a formal or official examination and verifica tion of books of account (as for reporting on the financial condition

of a business at a given date or on the resultsof its operations for a given period)" and as "a methodical examination and review of a situation or condition (as within a business enterprise) concluding with a detailed report

of fin dings

: a rendering and settling of a ccounts." Webster's Third New International Dictionary

143 (1993). "Audit" is also defined as "the final report following a forma l examination of books o f accou nt : an

acc ount as adjusted by auditors : final state ment of account." Webster's Third New International Dictionary

143 (1993). A s a verb, "audit" is defined as " to examine and verify (a s the books ofNo. 2--09--0100

-7-

account of a company or

a treasurer's acc ounts)." Webster's Third New I nternational Dictionary

143 (1993). Int er es ti ng ly, these definitions all place "audit" into a financial or accounting context, even thoug h the word

is applica

ble in othe

r contexts. Plaintiff

asserts, without re levant a uthority to support it s cont entio n, th at "aud it" in variab ly means a forma l exa minat ion o f an orga niza tion 's financial situation. While neither plaintiff nor we have found

any Illinois author

ity t o support t

his conte ntion, we no te th at th e d ic ti on ar y de fi ni ti on of fe rs so me sm al l s up po rt . In an y event , defenda nts offer no explanat

ion as to how the surv ey here is a "method ical exami

nati on" of the depart ment's condition or situation , or how a subjective questionnaire about job satisfaction and performance, completed

by depar

tment personnel an

d member s of the pu

blic, qua lifies as a "methodical examination." Onthe other ha

nd, a "su rvey " is defined

as "a st udy of a spec ified ar

ea or ag greg ate of un

its (as human beings) usu. with respect to a special condition or its prevalence or with the objective of drawing conclusions about a large r area or agg

regate : a sys tematic c ollection

and ana lys is of data

a nd esp. statistical data on some aspect of an area or group." Webster's Third New International Dictionary

2302 (199 3). The s

urvey here se ems t o fit

more comfortably

into the definition of "survey ," in that que stions abo ut job per

forma nce an d satisfaction seem to have the purpose of "drawing conclusions about" the de partment as a whole. Moreover, theformat of questions about job satisfac

tion and pe

rforman ce sure ly le ads to a ta

bulation a

nd statisti cal ana

lys is of the d

ata collected in the survey. B ased on our review of the ordinary

meaning of the word "audit," we cannot conclude that the trial court erred in determining that the surve y w as not exem pt as an a

udit. Accordingly , we reject defendants' f irst contention.No. 2--09--0100

-8-

Defend ants also contend that the "internal audit conduc t ed at the request of the Rockford Police Department is a job performan ce evaluation for the Police Department, essentially a personnel matter," whichfalls under the exemption for personnel files. 5 ILCS 140/7(1)(b)(ii) (West 2006). Once again, defendants fail to explain how the survey can be considered

a personnel matter when the questions

did not per

tain to indi

viduals and the responses were anony mous. Likewise, we reject the s ugges tion that the department as a whole is entitled to a personnel file exemption, as the personnel files exemption seeks to prevent an invasion of an individual's personal privacy, and not a public bod y's "privacy." Next, defendants contend that the survey should be e xempt from disclosure underthe selfcritical analy

sis privile ge. De fendant s contend that, in or

der to as sert the s elf-cr

itical analy sis privilege, a party

must show that: (1) the informa tion sough t resulte d from a s elf-cr itical analy sis undertaken

by the party see king protection; (2) the public has a strong interest in protecting the free flow of the information sought; (3) the information is of the type whose flo

w would be

curtaile d if discovery were allowed; and

(4) the document was prepared with the expectation that it would be kept confidential and has in fact been ke pt confi dential. See Tice v. American Airlines, I nc. , 192 F.R. D. 270, 272- 73 (N.D. Ill. 2 000). De fendant s assert t hat it is " undispute d" that the surve y "resulted from a self-critical analy sis undertaken

by the City

of Rockford." Defendants assert that it also meets the other elements of the federal common-law pr ivilege. Defendants' argume

nt fails on several grounds. I n the first place, the FOIA enumer ates its exemptions in section7. A self-critical analysis exemption is not to be found among the enumerated exemptions. The FOIA pre sumes that requested information should be released unless the informationfalls under one of the section 7 exemptions, which are to be r ead narrowly. Carter v.No. 2--09--0100

-9-

Meek , 322 Ill. App. 3d

266, 268 (2001). Under well-settled rules of statutory construction, we may notdepart from

the st atute 's plai n langu age by reading into it exceptions, limitations, or conditions the legislature did not express. People ex rel. Madigan v. Kinzer , 232 Ill. 2d 179, 1 84-85 (2009). The fact that the FOI

A does not expressly include an e xemption for self

-critic al analy

sis means that we cannot read that exemption into it. Second, we note

that the self-critical analysis privilege has not been a dopted by the I llinois courts. Inde ed, privi leges a re disfa vored be cause they

are in derog ati on of the search for truth. Peopleex rel . Birk ett v. City of C hicago , 292 Ill. App. 3d 745, 749 (19 9 7), aff'd , 184 Ill. 2d 521 (1998). Privileg es are s trictly construe d as exceptions to the gener al duty to disclose. Birkett , 292 Ill. App. 3d at 749. Our supreme court has consistently stated that "the extension of an existing privi lege or establishment of a new one is a matte r best deferred to th e legislature. " Birkett , 184 I ll. 2d at 528. Thus, the judiciary ha s an institutional bias against creating a here tofore unk

now n privi lege as a matter of common law. Instead, the courts refer the creation and e xpansion of privileges to the legislative a rena. B ecause

the legislature has not adopted the self- critica

l analy sis privilege into the FOI

A, we will not create such a privilege he re. Third, we note that defe ndants'use of fe deral c ases to su pport the se lf-critica l analy

sis privi lege is doubly dubious. I n the first place, decisions of fed eral dis trict courts are not binding upon state

courts and are, at most, persuasive authority

. Birkett , 292 I ll. App. 3d at 754. Second, and more importantly, howeve r, Illinois courts have repea tedly noted that the

Illinois version of the FOIA is different from the federal version and is, ther efore, subject to a

differen t interpretation. Carter , 32 2 Ill. App . 3d at 269 (c itin g Lieb er v. Bo ard of Tr ustees of Southern I

llinois Univ ersity, 176 Ill. 2d 401 (1997), and America n Feder ation of St ate, Coun ty & Municipa

l Employ ees v. Cou ntyNo. 2--09--0100

-10-

of C ook , 136 I ll. 2d 334 ( 1990), to s upport pr oposition that the Illinois FO IA di ffers f rom, and i s interpreted

differently tha

n, the federal FOI

A). For these reasons, we ca nnot acc ept defenda

nts' argument and authority

for creating a self-c

ritical analysis privileg e in this matter. Defend ants next contend that we should create a self- criti cal ana lysis pr ivil ege because the legislature codified this privilege into the Code of Civil Procedure via the Medical Studies Act (735 IL CS 5/8--2101 et seq. (West 2006) ). Ci ting Roach v. Sp ringfi eld Clinic , 157 Ill. 2d 29, 40 (1993), defenda nts argue that the self-critical ana lysis pri vileg e embodied in the Medical Studies Act ensures that "members of the medical profess ion will ef fective ly e

ngag e in self- evaluat

ion of the ir peer s in the interest of advancing the quality of hea lth care." Def

endants urge, by

analogy to the Medical Studies Act, that

we should

likewise create a self-critical a nalysis privilege

that applies to the FOIA. We disagree. The fact that the legislature codified this privilege in relationto the internal quality control of medical institution s me ans that the legislature easily could have codified the provision into the FOIA, had it cho sen to do so. The privilege's presenc e in the Medical Studies Act juxtaposed

agains t its absence in the FOIA strongly supports the opposite of defe ndants' argument--that the legislature deliber ately omitted the privilege from the FOI A and we should not

engraft it into the FOI

A. See Adames v. Sheahan , 233 Ill. 2d 276, 311 (2009) (par t icular language included in one part of a congressionalenactment and omitted in another raises the presumption that Congress intended the inclusion or exclusi on). Accordingly , we reje ct defe

ndants'invitation

to crea te a self -critic al analy

sis privilege in relation to the FOI A. Defend ants' final contention on appeal is that plaintiff should not have received an award of attorney fees. Altern atively, defendants contend that, even if an awar d of attorney f

ees wasNo. 2--09--0100

-11-

appropriate, this award was excessive. When c onsidering a challen ge to a p arty

's entit lement to attorney fee s un der th e FO IA , we revi ew the trial court's decision for an abuse of discretion. Callinan v. Prisoner Review Board , 371 Ill. App. 3d 272, 277 (2007 ). "An a buse of di scretion

will be found where t he court appl ied the wrong l egal standard." Callinan , 371 Ill. App. 3d at 277. We begin our conside ration of defe ndants'contenti on with the text of the F OIA . Prior to 2004, section 11(i) of the FOI A provided: "If a person seeking the right to inspect or r eceive a copy

of a public record substantia lly p revails in a proceeding under this Section, the court may award such person

reasona ble attorne

ys' fees if t he court finds tha t the rec ord or re cords in q uesti o n were of clearly significant interest to the general public a nd that the public body lacke d any reasonable basis in law for withholding the recor d." 5 IL CS 140/11(i) (West 2002). Effective January 1, 2004, section 11(i) wa s amended. As of the time plaintiff filed this case, section 11 (i ) p ro vi de d, pe rt in en tl y:

"If a person seeking the right to inspect or r eceive a copy

of a public record substantia lly p revails i na proceeding under this Section, the court may awa rd such person

reasona ble attorneys'

fees and costs. If

, however, the court finds that the fundamental purpose of the request was to further the commercial interests of the requestor, the court may award reasonable attorneys' fees and costs if the court find s that the rec ord or re cords in question were of clearly

significant interest to t

he ge neral public and that the public body lacked any rea son able bas is in law f or withhol ding the

record ." 5 I

LCS /14 0/11(i) (

West 2006).No. 2--09--0100

-12-

Under the pre-amended version of the provision, a plaintiff was eli gible to receive an awar d of attorney fees if it proved that (1) it substantially prevailed; (2)the rec ords wer e of sig nifican t interes t to the general public; and (3) the public body lacked any rea sonable basis in law for withholding the record s. 5 ILCS 140/11(i ) (West 200 2); Callinan , 371 Ill. A pp. 3d at 2 74. To be e ligible for attorney fees under the current version of the provision, a plaintiff without a c ommercia

l interes tneed prove only tha t it substan

tially prevail ed, while

a plaintif f with a c ommercia

l interes t is still re quir ed t o prove that its request served a public interest and that the defenda nt lacked a reasonable basis for withholdin

g the re cords. 5 I

LCS 140 /11(i) (We st 2006); Callinan , 371 Ill. App. 3d at 275. Defendants argue that

plaintiff 's motiva tion was pr

imarily commerc ial and th at it

thus had to prove that it substantially prevailed, tha tthe re cords were of significant interest to the g eneral public, and that d

efenda nts lacke d any

reasona ble basis in law for

withholdin

g the re cords. Defendants also assert that, in any event, plaintiff did not substantially prevail. We disag ree. The trial court expressly held that " [p]laintiff's fundamental purpose of the request for the 3- part [s]urvey was not to further commerc ial interests." Further, in awarding plaintiff attorne y f ees, the trial court

impliedly determined

that plaintiff had substantially preva iled. "[W]hen a trial court finds that a plaintiff has sub stanti ally prevailed, it should g rant attorney

fees to a noncommercial plaintiff." Callinan , 371 Ill. App. 3d at 277. The court may deny fe es only where spe cial circumstances would render the fee award unjust, such as where the plaintiff avoids the expense of attorney fees by pro ceedin g pro se , the defendant settles with the plaintiff solely to end a frivolous suit and avoid litigation expenses, the plaintiff was not instrumen

tal in ach ieving t he reme dy s ought,

or the plain tiff ag reed towaive its

right to pursue a ttorney fees. Callinan , 371 Ill. App. 3d at 277. The trial court made no finding of any special circumstance that would justify denying plaintiff's feeNo. 2--09--0100

-13-

request
. Like

wise, de fendant s do not ar gue th a t there w ere any

special circumst ances that would justify denying plaintiff's fee request. Considering the evidence in the record, we conclude that an award of attorney

fees to plaintiff was not an abuse of discretion. Citing Lovell v. Department of Justice , 589 F. Supp. 150, 153-54 (D.D.C. 1984), and Kuffel

v. United States Bureau of Prisons , 882 F. Supp. 1116, 1127 (D.D.C. 1995), Defendants argue that whether a plai ntiff subs tanti ally prev ailed is det ermin ed by cons ideri ng w hether the plain tiff's act ions caused the defenda

nt to rele ase the r

ecords. Defendants do not, however, close the analy tical loop and at te mp t t o d em on st ra te th at pl ai nt if f' s s ui t d id no t c au se de fe nd an ts to tu rn ov er th e s ur ve y. Perhaps defenda

nts intend to imply that, bec ause they have

not yet made the survey

availab le to plaintiff, pending the outcome of this appeal, we should h old that plaintiff has failed to earn the disclosure of the survey. On the other ha nd, there is nothing

in the re cord to sugge st that def endants would have released

the three-part survey

routinely or in the absenc e of plaintiff's lawsuit. Thus, we conclude that, eve

n though defenda nts cite au thority about how to determine whe ther a party

has substantia lly prevailed for the purposes of section 11(i) of the FOIA , defendants' lack of arg ument effec tively

concedes the pointthat plaintiff did indeed substantially preva il in winning the disclosure of the survey, a

nd the record amply

supports this conclusion. Defend ants also arg

ue that pl aintiff' s motivation in reque stin g the survey was prima

rily

commerc ial. Def

endants r eason tha t plaintif f is a union, which e

xists to further

the inter ests of its members with resp ect to their wa ges, be nefits, a nd workin

g condi tions. Defendants further contend that the "fundamental purpose of the requ ests was t o further [p]laintiff's commercial interest in the collective bargaining arena ." Once again, however, defendants fail to close the analy tical loop and demonstr ate a re lationship

between plaintiff's request for the survey and its motivation to advanceNo. 2--09--0100

-14-

its collective bargaining position. Such a relationship, between collective barg aining and a survey of union and nonunion employees' job satisfaction and the public's perception of the effec tiveness of the de partmen t, is not imme diately

appare nt. Theseconsider

ations als o serve t

o d is ti ng ui sh th e a ut ho ri ty o n w hi ch de fe nd an ts re ly. Defend ants cite Lieber v. Board o f Truste es of Southern I llinois Univ ersity, 316 Ill. App. 3d 266, 270 (2000), to illustrate the manner in which a c ommercia l inte rest will defeat a plaintiff's request for attorney fees. There, the

plaintiff owned uni

versi ty-ap proved, off-campus freshman housing a nd sought to compel

the unive

rsity , pursuan

t to the FO IA, t

o disclose

the nam es and addresses of accepted but not enr

olled fre shmen who

had expre ssed an in

terest in off-campus housing. The plain tiff's co mmercial in terest is manifest. Likewise, it is clear that the inf ormation sought, the

names and addresses of accepted but not enrolled f reshmen interested in off-campus housi ng, is of little interest to the general public. Here, by contrast, a survey

of the public dealing, in part, with the publ ic's perception of the effectiveness of the local police department is of obvious and compelling interest to the ge

neral pu blic. Fur ther, it is difficul t to see the nature of plaintiff's purported commercial interest

. Accordingly , we find Lieber to be distin

guishab le. For t

he fore going

reasons , we cannot sa

y that the tri al court

abused it s discretion in dee ming pla intiff el ig ible for r easonab le attorney fe es pursuant to section 11(i) of the FOI A. Defend ants argue

alterna tively that the award of fees was excessive. Defendants note that the "policy be

hind [section 11(i) of the FOIA] is to prevent someone from expending thousands of dollars on attorney

fees sol ely

to support

a commer

cial inte rest and then seeking to havetaxpayers who have littl e or no int

erest in the information, pay his or her attorney fees." Lieber , 316 Ill. App. 3d at 270. De fendant s furthe r note tha t the fe e provision was intended neither as a reward f or aNo. 2--09--0100

-15-

successful plaintiff nor as a punishment for the government for w rongly w ithholding records. Hamer

v. Lent z , 132 Ill. 2d 49, 62 (1989). Defenda nts assert that

the award of over $14,000 in attorney fees is punitive and clearly e

xcessive. Again, defendants do not close the analy tical loop and demonstrate (or eve n asser t) that plain tiff's counsel's time spent on this matter was unre asonable , or that in light of his experience and the complexity of the issues here his billing rate was excessive compared to the usual and customary ratein the locality for such se rvices. We are left

only with theconclusory a ssertion that the fees were excessive. Defend ants point to the trial co ur t' s " un ce rt ai nt y" i n m ak in g i ts fe e a wa rd . T ha t " un ce rt ai nt y" consisted of four ques t ions to plaintiff's attorney about his supplemental fee petition, plus the instruction to leave blank the space for attorney fees to be awarded. The trial court then procee ded to award plaintiff the full amount of attorney fees sought. We agree w ith plaintiff that the record fails to show that the trial court was uncertain about the fee a ward. Further, the cases cited

by d efenda nts are inapposite. Hamer recites only that the f

ee award is neither a

reward for a successful plaintiff nor a punishment for a recalcitrant gover nment. We see

no reason to place a union, which is a not-f or-profit organization whose budget is determined by dues collected from its membership, and which seeks the representation

of an attorney , in a different position from an in

dividual w

ho makes a

FOIA reque st utilizing his or her ownattorney. B oth have to spend their limited resources on the services of an at torney . As Hamer suggests, the fee awa

rd provision is designed

to giv e th e av era ge i ndi vi dua l t he a bi li ty to mak e an d pr ose cut e a F OIA request of the government. Hamer , 132 Ill. 2d at 62 (the purpose of the fee provision "is to ensureNo. 2--09--0100

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enforcement

of the FOIA," "by re

moving the burden of legal fees, which might deter litigants from pursuing legitimate FOI

A actions"). Thus, Hamer actually supports plaintiff' s position. Lieber is inapposite because it presupposes that the plaintiff has a commercial inter est and that the information sought

is of inter est to only the plaintiff, to be used in furthe ring its commercial goals. As we have seen, the trial court's de termination, that advancing its commercial interests was notplaintiff

's fund amental p urpose in making i ts FOI A reque st, was not

erroneous. Likewise, he

re, unlike in Lieber , the information sought was of significant interest to the g en eral public. Lieber's concern, then, that an individual could make the taxpaye rs pay his attor

ney to advan ce his commercial int erests via the FOIA, is not prese nt here. Lieber

offers no suppor

t to defe ndants' position in light of the circumstances present in this cas e . Accor dingly , we reje ct defe

ndants' argument that the attorney fee award was excessive. Fo rthe foreg oing re asons, the judgmen t of the c ircuit co

urt of Winne

bago Cou

nty is affirmed. Affirmed. SCHOSTOK and HUDSON, JJ., concur.